Citation Nr: 1444329
Decision Date: 10/06/14 Archive Date: 10/16/14
DOCKET NO. 11-15 531 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Reno, Nevada
THE ISSUES
1. Entitlement to an initial compensable rating for allergic rhinitis.
2. Entitlement to an increased initial rating for eczema/fungus infection of the right hand, rated as noncompensable prior to August 31, 2010, and as 60 percent disabling as of that date.
3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for asthma.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Van Wambeke, Counsel
INTRODUCTION
The Veteran served on active duty from November 1978 to October 1998.
These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada, in August 2010 and December 2012.
The August 2010 rating decision granted service connection for allergic rhinitis and eczema/fungus infection of the right hand. Both disabilities were rated as noncompensable effective July 6, 2007. In a May 2011 rating decision, the rating assigned to eczema/fungus infection of the right hand was increased to 60 percent effective August 31, 2010. Although the RO informed the Veteran that this represented a full grant of the benefit sought on appeal, the Board notes that the Veteran's appeal remains before the Board. Cf. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement (NOD) as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).
The December 2012 rating decision confirmed and continued the previous denial of service connection for asthma. The Board notes that since the issuance of that rating decision, the Veteran has made several statements indicating that his asthma may be secondary to the service-connected allergic rhinitis.
The Veteran presented testimony at a personal hearing before the undersigned Veterans Law Judge in May 2012 on the issue of entitlement to an initial compensable rating for allergic rhinitis. A transcript is located in the Veterans Appeals Control and Locator System (VACOLS).
The current record before the Board consists of paper claims files and electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS).
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
Additional development is needed in this case. As an initial matter, the Veteran has submitted additional lay statements and medical evidence pertinent to the claim for an initial compensable rating for allergic rhinitis, which was received after the issuance of the April 2012 supplemental statement of the case (SSOC) without a waiver of RO consideration. The Board must remand the Veteran's claim for consideration of this additional evidence. See 38 C.F.R. §§ 19.37(b), 20.1304(c).
It also appears that there may be outstanding VA treatment records. More specifically, records from the VA Southern Nevada Healthcare System (VASNHS) dated between December 2012 and July 2013 are not of record and must be obtained. Updated VA treatment records from this facility should also be obtained. In addition to the foregoing, a more contemporaneous VA examination is needed to assess the current severity of the Veteran's service-connected allergic rhinitis, as the disability was last evaluated over three years ago in May 2011.
The Board notes that the Veteran originally claimed service connection for sinusitis, but service connection was instead established for allergic rhinitis. See July 2007 VA Form 21-4138; August 2010 rating decision. In recent private treatment records submitted by the Veteran, it appears that greater than 50 percent of both nasal passages were obstructed, which would satisfy the criteria for a 10 percent rating under Diagnostic Code 6522, which is the diagnostic criteria used to rate the service-connected allergic rhinitis. Treatment rendered at the time of this finding, however, did not diagnose allergic rhinitis, and instead diagnosed chronic maxillary sinusitis. On remand, the VA examiner must specifically address whether the Veteran has both allergic rhinitis and sinusitis.
Service connection for eczema/fungus infection of the right hand was granted in an August 2010 rating decision, which assigned a noncompensable evaluation effective July 6, 2007. The Veteran filed a NOD as to the rating assigned. In a May 2011 rating decision, the rating was increased to 60 percent effective August 31, 2010. The RO informed the Veteran that this represented a complete grant of the benefit sought on appeal. See May 2011 rating decision; May 25, 2011, notice letter. Since the 60 percent rating did not go back to July 6, 2007, the date on which service connection for this disability was granted, the RO's action in the May 2011 does not represent a full grant of the benefit sought on appeal. On remand, the RO must issue a statement of the case (SOC) concerning this claim. See Manlincon v. West, 12 Vet. App. 238 (1999).
The Veteran filed a claim to reopen his previously denied claim for entitlement to service connection for asthma in June 2011. In a December 2012 rating decision, the previous denial was confirmed and continued. VACOLS shows that a NOD was filed in February 2013. Although the document reported in VACOLS is not of record (and may be located in a temporary file, which must be obtained on remand), the Board interprets a statement submitted directly to the Board in May 2013 as an expression of the Veteran's disagreement with the denial of the claim for asthma (although he also makes references to allergic rhinitis). On remand, the RO must also issue a SOC concerning this claim. Id.
Accordingly, the case is REMANDED for the following action:
1. Obtain any temporary claims file.
2. Obtain the Veteran's treatment records from the VA Southern Nevada Healthcare System (VASNHS), dated between December 2012 and July 2013 and since May 2014.
3. Schedule the Veteran for an appropriate VA examination to assess the current severity of his service-connected allergic rhinitis. The claims file and any pertinent evidence in Virtual VA and/or VBMS that is not contained in the claims file must be made available to and reviewed by the examiner. All necessary tests should be conducted.
The examiner must specifically address whether the Veteran has chronic sinusitis in addition to the service-connected allergic rhinitis.
The examiner must also specifically address whether the service-connected allergic rhinitis is manifested by greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side; and whether there are any polyps.
The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached.
4. Provide the Veteran a statement of the case with respect to the issue of entitlement to an increased initial rating for eczema/fungus infection of the right hand, rated as noncompensable prior to August 31, 2010, and as 60 percent disabling as of that date, and the issue of whether new and material evidence has been received to reopen a claim for entitlement to service connection for asthma. The Veteran should be informed of the actions necessary to perfect an appeal on these issues. Thereafter, these issues are to be returned to the Board only if an adequate and timely substantive appeal is filed.
5. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented.
6. Finally, readjudicate the claim for entitlement to an initial compensable rating for allergic rhinitis. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order.
The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the U.S. Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
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KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).